In re Travelers Lloyds of Texas Insurance Company--Appeal from 225th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00660-CV
IN RE TRAVELERS LLOYDS OF TEXAS INSURANCE COMPANY

Original Mandamus Proceeding (1)

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 3, 2004

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

In this original proceeding, Travelers Lloyds of Texas Insurance Company argues the trial court's order granting a new trial in favor of O.W. and S.W., parents and natural guardians of minors P.W., K.W., and R.W., is void because the court's plenary power had expired before the order was entered. We agree and conditionally grant the writ.

Background

O.W. and S.W. (the "Parents") allege that Michael and Kathryn Smith's son, D.S., sexually assaulted their three children, P.W., K.W., and R.W., while in the Smith's care. Parents brought negligence, gross negligence, and intentional infliction of emotional distress causes of action against the Smiths after learning of the alleged assaults.

Travelers, which provided a homeowner's insurance policy to the Smiths, filed a declaratory judgment action against the Smiths seeking a declaration that it owed no duty to defend or indemnify the Smiths in the suit filed by Parents. The Smiths were served, but did not file an answer to Traveler's declaratory judgment action. The trial court rendered a default judgment against the Smiths on July 19, 2004.

On July 28, 2004, Parents moved to intervene in the declaratory judgment action. They also filed a motion for new trial asserting they should have been joined in the action because they are necessary parties by virtue of their claim to the insurance proceeds. The Smiths never filed a motion for new trial. Travelers moved to strike Parents' motion to intervene on August 3, 2004.

The trial court conducted a hearing on Parents' motions on August 6, 2004; however, the trial court did not rule on Parents' motions at that time. On August 19, 2004, the trial court entered an order granting Parents a new trial. According to the trial court's order, the new trial applied to all "issues of indemnity to . . . (the Smiths) and liability of [Travelers] to the Intervenors [the Parents]." The trial court's order further states the new trial does not apply to the issue of whether Travelers has to provide a defense for the Smiths in the suit brought by Parents. Travelers brought this original proceeding to vacate the order granting Parents a new trial.

Standard of Review

Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). However, when a trial court's order is void, mandamus relief is available regardless of whether there is an adequate remedy by appeal. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000).

Discussion

Travelers asserts that the trial court's order granting Parents a new trial is void because the trial court entered it after the court's plenary power had expired. See In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (concluding trial court's order granting a new trial was void because it was rendered at a time when the court had lost plenary power). The default judgment in this case was entered on July 19, 2004. Parents, nonparties to the declaratory judgment action, filed both a motion to intervene and a motion for new trial seeking to set aside the default judgment on July 28, 2004. The Smiths did not take any action to set aside the default judgment. The trial court entered its order granting Parents' motions on August 19, 2004.

Without a proper motion for new trial or motion to modify, correct, or reform the judgment, the trial court's plenary power in this case was set to expire thirty days after the default judgment was signed, i.e., on August 18, 2004. See Tex. R. Civ. P. 329b. Because the Smiths did not file any motions challenging the default judgment, the validity of the trial court's August 19, 2004 order depends on whether Parents' motion for new trial extended the trial court's plenary power beyond August 18, 2004. See id.

After considering the issue, we hold Parents' motion for new trial was ineffective to extend the court's plenary power beyond August 18, 2004 because they were nonparties to the declaratory judgment action. (2) Although interested persons asserting that they are necessary parties to the suit may file a motion for new trial to make the court aware that in the interest of justice the original judgment should be set aside to allow the proposed intervenors to protect their rights, "only a motion for new trial filed by a party of record automatically extends the trial court's plenary power." State and County Mut. Fire Ins. Co. v. Kelly, 915 S.W.2d 224, 227 (Tex. App.--Austin 1996, orig. proceeding). Motions for new trial filed by nonparties are simply unofficial pleas to the "court to exercise its discretion allowed under [Texas Rule of Civil Procedure] 320 to set aside the judgment during the court's plenary power." Id. Thus, Parents' motion for new trial could not have extended the court's plenary power in this instance. See id.

Conclusion

The trial court's order granting Parents a new trial is void because it was entered after the court's plenary power had expired. We conditionally grant the writ of mandamus and expect that the trial court will vacate its August 19, 2004 order within fifteen days of this opinion. The writ will issue only if the trial court does not act in accordance with this opinion.

Catherine Stone, Justice

1. This proceeding arises out of Cause No. 2004-CI-05489, styled O.W. and S.W. as Guardians and Next Friends of P.W., K.W., and R.W., Minor Children v. Kathryn E. Smith, Michael Lawrence Smith, and Dustin Smith, pending in the 166th Judicial District Court, Bexar County, Texas, the Honorable Lori Massey presiding. The Honorable John Specia, Jr. of the 225th Judicial District Court, Bexar County, Texas signed the order forming the basis of this mandamus proceeding.

2. Parents' motion to intervene did not make them parties to the action on the day they filed the motion (July 28, 2004) because the motion was made after judgment was rendered. When a motion to intervene is filed after a judgment, the court may not consider the motion until after it sets aside the judgment. See First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984); Kelly, 915 S.W.2d at 227. Here, the judgment was not set aside on July 28, 2004; rather, it was set aside at a much later date, August 19, 2004.